State of Tennessee v. Frank L. Glavin ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 14, 2012
STATE OF TENNESSEE v. FRANK L. GLAVIN
Appeal from the Circuit Court for Bedford County
No. 17226 F. Lee Russell, Judge
No. M2012-00550-CCA-R3-CD - Filed February 14, 2013
The Defendant-Appellant, Frank L. Glavin, appeals his convictions for evading arrest, a
Class E felony, and violating the noncriminal implied consent law. He argues on appeal that
the evidence was insufficient to support the aforementioned convictions. Upon review, we
affirm the judgment of conviction for evading arrest, and we reverse and vacate the judgment
of conviction for violating the noncriminal implied consent law.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court
Affirmed in Part, Reversed and Vacated in Part
C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which JERRY L. S MITH,
J., joined. R OBERT W. W EDEMEYER, J., filed a concurring in part and dissenting in part
opinion.
Mitchell J. Ferguson, Murfreesboro, Tennessee, for the Defendant-Appellant, Frank L.
Glavin.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Charles F. Crawford, Jr., District Attorney General; and Christopher Collins,
Assistant District Attorney General, for the Appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
The Bedford County Grand Jury indicted Glavin for evading arrest; driving under the
influence (DUI), second offense; violating the implied consent law; speeding; and failing to
produce a vehicle registration. On October 25, 2011, a Bedford County Circuit Court jury
convicted Glavin of evading arrest, violating the implied consent law, speeding, and failing
to produce a vehicle registration. The jury was unable to reach a verdict on the charge of
DUI, second offense.
On January 5, 2012, regarding the outstanding charge of DUI, second offense, Glavin
entered a guilty plea to DUI, first offense. That same day, the trial court sentenced Glavin
as a Range I, standard offender to one year in the county jail for the evading arrest
conviction, revoked his driver’s license for one year for violating the implied consent law,
and ordered him to pay a $50 fine for the speeding conviction and a separate $50 fine for the
registration conviction. The court also sentenced Glavin as a Range I, standard offender to
forty-eight hours of confinement for the DUI conviction to be served concurrently with the
evading arrest conviction, for an effective sentence of one year in the county jail.
At the October 25, 2011 trial, Trooper Barry Qualls, Jr., testified that he had worked
for the Tennessee Highway Patrol for nearly ten years and currently worked as a K-9 officer.
He also stated that he had served eighteen years as a military policeman for the United States
Army.
On Friday, January 14, 2011, at 11:40 p.m., Trooper Qualls said he was on patrol in
a rural area of Bedford County on Route 270. He was “running radar” as he approached the
intersection of Highway 41A North and Route 270. As he headed towards the intersection,
he observed a car coming over the crest of a hill driving at a fast rate of speed. His radar
device confirmed that the driver of the car, later identified as Glavin, was traveling at a rate
of sixty-seven miles per hour in a forty-five mile-per-hour speed zone. Trooper Qualls said
that he was .2 miles away from Glavin when he clocked Glavin driving at sixty-seven miles
per hour.
Trooper Qualls said that he immediately slowed down and activated his blue lights,
which signaled to Glavin that he was initiating a traffic stop. He stated that Route 270 is a
two-lane road with no shoulder, so he slowed down to make a three-point turn so he could
follow Glavin. Before Trooper Qualls could turn around, Glavin drove past his patrol car.
He said that the driver’s side window of his patrol car was lowered that night because he was
smoking, and he heard Glavin’s car accelerate as it drove past. When he realized Glavin was
not going to stop, Trooper Qualls turned on his video camera and alerted dispatch. He began
traveling at 110 to 120 miles per hour in order to catch up to Glavin. Trooper Qualls said he
had to drive approximately 1.6 miles before he caught up with Glavin’s vehicle.
During his pursuit, Trooper Qualls said Glavin turned onto Zion Hill Road. He said
that Glavin’s house was on Janna Lane, which was .7 of a mile away from the point where
Glavin stopped his car. Trooper Qualls said that the area in which he pursued Glavin not
heavily traveled at night and that many other individuals had been able to outrun him in that
area because there were so many back roads. He described the area as “a big circle maze of
roads,” which allowed drivers to lose officers.
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When he realized that Glavin was coming to a stop, Trooper Qualls alerted dispatch
that the car he had been pursuing was stopping. He then approached the vehicle, and Glavin
opened his door because he was unable to lower his window. Trooper Qualls observed that
there were two individuals in the car. He said he then “smelled a strong odor of intoxicant
coming out of the vehicle.” He informed Glavin that he had been driving sixty-seven miles
per hour in a forty-five mile-per-hour speed zone. Glavin gave him his driver’s license after
fumbling to find his insurance card. Trooper Qualls said that Glavin was unable to provide
the current registration for the car he was driving. During their interaction, Trooper Qualls
noticed that Glavin had “bloodshot, watery eyes” and “slurred speech.”
Trooper Qualls said that the video recording of the stop did not depict everything that
occurred during his conversation with Glavin because the camera’s microphone “cut[] in and
out, depending on the distance of the vehicles” and the batteries often stopped working at the
end of a shift. Glavin told Trooper Qualls that he and his roommate had been to a restaurant
in Columbia and were returning home. Trooper Qualls told Glavin to wait while he checked
his driver’s license. At that point, Trooper Qualls stated that he believed Glavin was under
the influence of an intoxicant. When he returned, Trooper Qualls asked Glavin to perform
some field sobriety tests, and Glavin told him that he was declining to submit to the field
sobriety tests on the advice of his attorney. Trooper Qualls then told Glavin to sit in his
vehicle and called for backup. After a few minutes, Deputies Benji Burris and Cam Newton
arrived, took Glavin into custody, and placed him in the back of their patrol car. Prior to
being placed in the patrol car, Glavin became agitated and kept saying, “[W]hy don’t you just
let me go home[?]” Trooper Qualls advised Glavin that he was under arrest.
Trooper Qualls said that he got his dog out of his patrol car as “an intimidation factor”
because Glavin was “a little bit bigger” than him and because Glavin had a friend with him
in the car. He stated that he smelled “a strong smell of intoxicant” coming off of Glavin’s
person, even after he got Glavin out of his car and away from his friend.
Once Glavin was transported to the magistrate’s office at the jail, Trooper Qualls read
the entire implied consent form to him. After the implied consent form was admitted into
evidence, Trooper Qualls read the form to the jury. Trooper Qualls stated that Glavin refused
to sign the document. Trooper Qualls asked if Glavin would submit to a blood test, and
Glavin refused. Trooper Qualls marked the implied consent form showing that Glavin
refused to submit to tests.
The video of Glavin’s traffic stop was played for the jury. The video showed Trooper
Qualls leaning into the vehicle to detect the odor of an alcoholic beverage or narcotics in the
car. It also showed Trooper Qualls asking Glavin if he would submit to a blood test, and
Glavin responding, “No.” Trooper Qualls stated that even though he asked for Glavin to
submit to a blood test during the traffic stop, he also read the implied consent form to Glavin
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at the magistrate’s office. He acknowledged that it was “mandatory” that he read the implied
consent form to all individuals arrested for DUI. Trooper Qualls opined that “[Glavin] was
under the influence at the time of arrest.”
On cross-examination, Trooper Qualls admitted that he did not “call out a pursuit” to
dispatch because he had not “had the opportunity to catch up with [Glavin] yet and see if he
was going to stop.” He explained that if he had called out a pursuit, dispatch would have
“notified all [the] surrounding agencies, even other troopers, to come to [his] location.”
Trooper Qualls acknowledged that Glavin stopped on Zion Hill Road when he got close to
him. He also acknowledged that Glavin turned on his right turn signal when his patrol car
was approximately a quarter of a mile behind him.
When asked if he was sure that Glavin saw his blue lights when he first clocked him
on the radar near the intersection of Route 270 and Highway 41A North, Trooper Qualls said,
“It’s kind of obvious when you’re coming right at me[,] and you’re in front of me[,] and I
activate my blue lights.” Then he said that Glavin “made the split second decision to fight
or flight, and he chose to try to get away.” Because it took 1.6 miles to catch up to Glavin,
Trooper Qualls said Glavin “wasn’t slowing down.” He also said that he first told dispatch
that he was trying to catch up to Glavin after he turned around to go after him. Trooper
Qualls said the camera was not recording at the time when he first activated his blue lights
because the camera “was not synchronized correctly[.]” He acknowledged that he was at
fault for not manually turning on the camera earlier. Trooper Qualls admitted that Glavin’s
refusal to submit to field sobriety tests did not violate the implied consent law. He also
admitted that Glavin had a valid driver’s license the night he was arrested. Trooper Qualls
denied telling Glavin that refusing field sobriety tests would get him arrested for DUI
whether he was guilty or not.
Trooper Qualls confirmed that Glavin had seen his blue lights when he first activated
them because Glavin had not yet passed his patrol car and he had “no choice but to see them
or be blinded by them.” He acknowledged that the recording did not show that his blue lights
were activated as he approached the intersection of Route 270 and Highway 41A.
Trooper Qualls said that the magistrate witnessed him reading the implied consent
form to Glavin, although he did not have the magistrate sign the form as a witness. He said
that he did not have Glavin sign the implied consent form because he never gives the people
he arrests a “sharp object” that could be used as a weapon against him. He added the
Tennessee Highway Patrol’s policy did not require that defendants sign the implied consent
form, “as long as it is read to them.” He acknowledged that there was no record of him
reading the form to Glavin other than his testimony. However, he maintained that everything
he did the night of Glavin’s arrest was according to Tennessee Highway Patrol policy.
Trooper Qualls acknowledged that no liquor or beer bottles were found in Glavin’s car.
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However, he said that Glavin staggered when he got out of his vehicle, although the video
recording did not show this because the deputies on the scene were blocking the camera.
On re-direct examination, Trooper Qualls stated that Glavin was driving down a hill
and he was facing Glavin at the bottom of this hill when he first activated his blue lights. He
said that Glavin initially slowed down before accelerating past him. Trooper Qualls said that
Glavin’s passenger admitted to drinking four beers that night and that Glavin smelled of
alcohol more than the passenger, even though the passenger was too intoxicated to drive.
Glavin testified on his own behalf. He stated that on January 14, 2011, he and his
roommate went to Lucy’s restaurant in Columbia at approximately 10:30 p.m. Glavin said
that he did not consume any alcohol at the restaurant, although his roommate did, and they
left the restaurant some time between 11:15 and 11:30 p.m. He said that he passed his home
going east on Route 270 because he was headed to the market at the corner of Route 270 and
Highway 41A for a pack of cigarettes. When he discovered the market was closed, he turned
around in a gravel area across the street from the market and turned onto Route 270 heading
west.
Glavin stated that he did not see Trooper Qualls’s blue lights until he was near
Evergreen Drive, which is the road just before Zion Hill Road. He denied passing Trooper
Qualls near the intersection of Route 270 and Highway 41A. He said that he “most likely”
would have seen an officer’s blue lights if the officer had passed him with the blue lights
activated. Glavin said that although he normally turned onto the next road, Thompson Road
because it was the closest route to his home, he turned on Zion Hill Road because he saw the
Trooper Qualls’s blue lights. He said that if there had been alcohol on his breath that night,
it would have been because he had something to drink when he ate lunch at 3:00 p.m. that
day, which was approximately nine hours prior to being stopped by Trooper Qualls. Glavin
said that he might have had bloodshot eyes that night because he had been crying as a result
of a fight with his girlfriend. When his attorney asked him if he was unstable on his feet
during the stop, he replied, “Absolutely not.” He claimed to have followed all of Trooper
Qualls’s instructions during the stop.
Glavin said that Trooper Qualls never read him the implied consent form at the
magistrate’s office and never asked him to sign the form. He also said that he never saw
Trooper Qualls at the magistrate’s office. Instead, Glavin said that the officers who
transported him to the jail put him directly into a holding cell, where he stayed for eight hours
until he was booked. Glavin stated, “I can unequivocally tell the jury that nobody ever read
that form to me.” He also denied being impaired the night of the incident.
On cross-examination, Glavin acknowledged that he had a commercial driver’s license
but had not used it since 2005. He asserted that although he first saw Trooper Qualls’s blue
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lights at Evergreen Drive, he did not stop there because he was traveling too fast. He
admitted that Lucy’s was a “club, restaurant, bar” with a dance floor. He also admitted that
he drank three or four margaritas in two hours during his late lunch the day of his arrest.
Glavin said that he refused to take the field sobriety tests because he “had always been told
that if you take the test, you’re giving up your rights.” He admitted that he refused the blood
alcohol test offered by Trooper Qualls. However, he claimed that he did not know he would
lose his license for failing for submit a blood sample. He reiterated that he stopped as soon
as he saw Trooper Qualls’s blue lights and never saw Trooper Qualls’s blue lights near the
intersection of Route 270 and Highway 41A.
Elizabeth Lucas, Glavin’s girlfriend, testified that the day of Glavin’s arrest, she and
Glavin “had a little verbal thing over the phone because [she] wanted to date other people
and not just him and he was hurt by that.” She acknowledged that Glavin drank socially and
that she had seen him impaired “[a]t the house.”
ANALYSIS
Glavin argues that the evidence was insufficient to sustain his convictions for felony
evading arrest and violating the implied consent law. The State responds that it was the
jury’s prerogative to accredit Trooper Qualls’s testimony and that the evidence was sufficient
to support the two convictions. Although we agree that the evidence was sufficient to sustain
the evading arrest conviction, we reverse and vacate the judgment of conviction for violating
the noncriminal implied consent law because the jury instead of the general sessions court
made the determination that he had committed this offense.
The State, on appeal, is entitled to the strongest legitimate view of the evidence and
all reasonable inferences which may be drawn from that evidence. State v. Bland, 958
S.W.2d 651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence,
the standard of review applied by this court is “whether, after reviewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of
Appellate Procedure states, “Findings of guilt in criminal actions whether by the trial court
or jury shall be set aside if the evidence is insufficient to support a finding by the trier of fact
of guilt beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case
where there is direct evidence, circumstantial evidence, or a combination of the two. State
v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551
S.W.2d 329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)). The
trier of fact must evaluate the credibility of the witnesses, determine the weight given to
witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928 S.W.2d
18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the evidence, this
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court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the jury, approved by
the trial court, accredits the testimony of the witnesses for the State and resolves all conflicts
in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A guilty verdict also
“removes the presumption of innocence and replaces it with a presumption of guilt, and the
defendant has the burden of illustrating why the evidence is insufficient to support the jury’s
verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).
“In the absence of direct evidence, a criminal offense may be established exclusively
by circumstantial evidence.” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011) (citing
Duchac v. State, 505 S.W.2d 237, 241 (Tenn. 1973); Marable v. State, 313 S.W.2d 451, 456-
58 (Tenn. 1958)). However, “[t]he jury decides the weight to be given to circumstantial
evidence, and ‘[t]he inferences to be drawn from such evidence, and the extent to which the
circumstances are consistent with guilt and inconsistent with innocence, are questions
primarily for the jury.’” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (quoting Marable,
313 S.W.2d at 457). This court may not substitute its inferences for those drawn by the trier
of fact in cases involving circumstantial evidence. State v. Lewter, 313 S.W.3d 745, 748
(Tenn. 2010) (citing Liakas v. State, 286 S.W.2d 856, 859 (Tenn. 1956)). We note that the
standard of review “‘is the same whether the conviction is based upon direct or
circumstantial evidence.’” State v. Hanson, 279 S.W.3d 265, 275 (quoting State v. Sutton,
166 S.W.3d 686, 689 (Tenn. 2005)); State v. Carruthers, 35 S.W.3d 516, 557 (Tenn. 2000).
The court in Dorantes specifically adopted the standard for circumstantial evidence
established by the United States Supreme Court in Holland:
“Circumstantial evidence . . . is intrinsically no different from
testimonial evidence. Admittedly, circumstantial evidence may in some cases
point to a wholly incorrect result. Yet this is equally true of testimonial
evidence. In both instances, a jury is asked to weigh the chances that the
evidence correctly points to guilt against the possibility of inaccuracy or
ambiguous inference. In both, the jury must use its experience with people and
events in weighing the probabilities. If the jury is convinced beyond a
reasonable doubt, we can require no more.”
Dorantes, 331 S.W.3d at 380 (quoting Holland v. United States, 348 U.S. 121, 140 (1954)).
First, Glavin argues that the evidence was insufficient to sustain his conviction for
evading arrest because his testimony and the video recording established that he immediately
stopped on Zion Hill Road upon seeing Trooper Qualls’s blue lights. Glavin was convicted
of evading arrest, a Class E felony, in violation of Tennessee Code Annotated section 39-16-
603, which states in pertinent part: “It is unlawful for any person, while operating a motor
vehicle on any street, road, alley or highway in this state, to intentionally flee or attempt to
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elude any law enforcement officer, after having received any signal from the officer to bring
the vehicle to a stop.” T.C.A. § 39-16-603(b)(1). A violation of this section is a Class E
felony “unless the flight or attempt to elude creates a risk of death or injury to innocent
bystanders or other third parties, in which case a violation of subsection (b) is a Class D
felony.” Id. § 39-16-603(b)(3).
Trooper Qualls testified that he was .2 miles away from Glavin’s oncoming car when
he first activated his blue lights. He stated that he was certain that Glavin saw his blue lights
because Glavin had not passed his approaching patrol car on Route 270, because Glavin was
on higher ground than he was, and because Glavin had “no choice but to see them or be
blinded by them.” Trooper Qualls said that as Glavin’s car passed him, Glavin slowed down
before accelerating past him. He said that Glavin made a “split second decision to fight or
flight, and he chose to try to get away.” He opined that because he had to travel 1.6 miles
to catch up with Glavin, Glavin “wasn’t slowing down” during his pursuit. Although Glavin
testified that he stopped at Zion Hill Road as soon as he saw Trooper Qualls’s blue lights,
it was the jury’s prerogative to accredit the testimony of Trooper Qualls over the testimony
of Glavin. See Odom, 928 S.W.2d at 23. Accordingly, we conclude that the evidence was
sufficient to sustain Glavin’s conviction for felony evading arrest.
Second, Glavin contends that because the jury was unable to reach a verdict on the
DUI charge, Trooper Qualls had no basis upon which “to ask for a test[,]” which he alleges
is required in order to convict him of violating the implied consent law. He claims that
“there was minimal proof put before the jury that could lead a reasonable juror to conclude
that the defendant was impaired.” He also claims that he was only observed speeding, that
he immediately stopped upon seeing the blue lights, that he obeyed all traffic rules when he
turned right on the first available road, that he provided his license and registration, that the
officer was unable to determine whether the smell of alcohol was coming from him or his
passenger, that the officer never asked him to perform any field sobriety tests, and that he
complied with each of the officer’s requests. He also argues that the video recording of the
traffic stop shows that he immediately stopped upon seeing the officer’s blue lights and that
he exhibited no signs of impairment during the stop.
The State responds that Trooper Qualls had reasonable grounds to believe that Glavin
was driving while under the influence of alcohol pursuant to Tennessee Code Annotated
section 55-10-406, despite the fact that the jury could not agree that Glavin was guilty of DUI
beyond a reasonable doubt. The State also asserts that Glavin’s refusal to submit to the blood
alcohol test supports his conviction for violating the implied consent law.
The implied consent law states the following, in pertinent part:
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(a)(1) Any person who drives a motor vehicle in this state is deemed to have
given consent to a test or tests for the purpose of determining the alcoholic
content of that person’s blood, a test or tests for the purpose of determining the
drug content of the person’s blood, or both tests. However, no such test or
tests may be administered pursuant to this section, unless conducted at the
direction of a law enforcement officer having reasonable grounds to believe
the person was driving while under the influence of alcohol, a drug, any other
intoxicant or any combination of alcohol, drugs, or other intoxicants as
prohibited by § 55-10-401 . . . .
....
(3) Any law enforcement officer who requests that the driver of a motor
vehicle submit to either or both tests authorized pursuant to this section, for the
purpose of determining the alcohol or drug content, or both, of the driver’s
blood, shall, prior to conducting either test or tests, advise the driver that
refusal to submit to the test or tests will result in the suspension by the court
of the driver’s operator’s license; if the driver is driving on a license that is
cancelled, suspended or revoked because of a conviction for vehicular assault
under § 39-13-106, vehicular homicide under § 39-13-213, aggravated
vehicular homicide under § 39-13-218, or driving under the influence of an
intoxicant under § 55-10-401, that the refusal to submit to the test or tests will,
in addition, result in a fine and mandatory jail or workhouse sentence; and if
the driver is convicted of a violation of § 55-10-401, that the refusal to submit
to the test or tests, depending on the person’s prior criminal history, may result
in the requirement that the person be required to operate only a motor vehicle
equipped with a functioning ignition interlock device. . . .
(4)(A) If such person, having been placed under arrest and then having been
requested by a law enforcement officer to submit to either or both tests, and
having been advised of the consequences for refusing to do so, refuses to
submit, the test or tests to which the person refused shall not be given, and the
person shall be charged with violating this subsection (a). The determination
as to whether a driver violated this subsection (a) shall be made at the driver’s
first appearance or preliminary hearing in the general sessions court, but no
later than the case being bound over to the grand jury, unless the refusal is a
misdemeanor offense in which case the determination shall be made by the
court which determines whether the driver committed the offense; however,
upon the motion of the state, the determination may be made at the same time
and by the same court as the court disposing of the offense for which the driver
was placed under arrest. If the court finds that the driver violated this
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subsection (a), except as otherwise provided in subdivision (a)(5), the driver
shall not be considered as having committed a criminal offense; however, the
court shall revoke the license of the driver for a period of:
(i) One (1) year, if the person does not have a prior conviction for a violation
of § 55-10-401, § 39-13-213(a)(2), § 39-13-218, § 39-13-106, or § 55-10-418,
in this state, or a similar offense in any other jurisdiction;
(ii) Two (2) years, if the person does have a prior conviction for an offense set
out in subdivision (a)(4)(A)(i);
....
(B) For the purposes of this subdivision (a)(4), “prior conviction” means a
conviction for one (1) of the designated offenses, the commission of which
occurred prior to the DUI arrest giving rise to the instant implied consent
violation.
T.C.A. § 55-10-406 (Supp. 2011) (amended 2012) (emphasis added).
Here, the record shows that Glavin was charged with violating the noncriminal
implied consent law. Tennessee Code Annotated section 55-10-406(a)(4)(A) specifically
states that the determination as to whether an individual violated the noncriminal implied
consent law “shall be made at the driver’s first appearance or preliminary hearing in the
general sessions court, but no later than the case being bound over to the grand jury[.]”
However, that section also states that “upon the motion of the state, the determination may
be made at the same time and by the same court as the court disposing of the offense for
which the driver was placed under arrest.” Id. § 55-10-406(a)(4)(A). Although this statute
gives the trial court, rather than a jury, the authority to determine whether the noncriminal
implied consent law was violated, the record shows that the Bedford County Circuit Court
jury made the determination that Glavin violated the noncriminal implied consent law in this
case. See id. § 55-10-406(a)(5) (stating that “if the court or jury finds that the driver violated
this subsection (a) while driving on a license that was revoked, suspended, or cancelled
because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under
§ 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the
influence of an intoxicant under § 55-10-401, the driver commits a Class A misdemeanor”);
Compare State v. Andrew Reginald MacKinnon, No. E2009-00093-CCA-R3-CD, 2011 WL
1460167, at *3 (Tenn. Crim. App. Mar. 30, 2011) (concluding that the trial court, rather than
a jury, has the authority to determine whether a violation of the noncriminal implied consent
law occurred), with State v. Lee Stanley Albright, No. E2007-02671-CCA-R3-CD, 2008 WL
5130691, at *4 (Tenn. Crim. App. Dec. 8, 2008) (concluding that the jury’s determination
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of whether the defendant violated the noncriminal implied consent law was proper).
Moreover, this determination should have been made by the general sessions court rather
than the criminal court, unless the State filed a motion requesting that the criminal court
make the determination at the same time that it disposed of the offenses for which the driver
was arrested. See id. § 55-10-406(a)(4)(A). No such motion appears in the record.
Consequently, we must reverse and vacate the trial court’s judgment of conviction regarding
the noncriminal implied consent violation and must dismiss count three of the indictment
charging Glavin with violating the noncriminal implied consent law.
Finally, Glavin contends that it was plain error for the jury to view the videotape of
the stop a second time when it contained information that Glavin had previously been
convicted of DUI. We initially note that Glavin’s attorney had no objection to playing the
video recording of the stop for the jury at trial. See Tenn. R. App. P. 36(a) (“Nothing in this
rule shall be construed as requiring relief be granted to a party responsible for an error or who
failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error.”). We also note that Glavin has presented absolutely no argument, no
citations to legal authorities, and no references to the record regarding this issue. See Tenn.
Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument, citation to authorities,
or appropriate references to the record will be treated as waived in this court.”). Failure to
comply with this basic rule will ordinarily constitute a waiver of the issue. Id.; State v.
Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000). Consequently, this issue is
waived.
CONCLUSION
We conclude that the evidence was sufficient to sustain Glavin’s conviction for
evading arrest. Accordingly, we affirm the judgment of conviction for evading arrest, and
we reverse and vacate the judgment of conviction for violating the noncriminal implied
consent law and dismiss that count of the indictment.
______________________________
CAMILLE R. McMULLEN, JUDGE
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